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DOI solicitor nominee vows to follow law on frozen funds, warns against rushed NEPA reviews
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Summary
Mister Doerfemeyer, the nominee for solicitor at the Department of the Interior, told the Senate Energy and Natural Resources Committee that his job would be to "review the facts and review the law and provide my clear advice on what the law requires" when asked whether he would ensure appropriated funds are obligated and dispersed in accordance with the Impoundment Control Act.
Mister Doerfemeyer, the nominee for solicitor at the Department of the Interior, told the Senate Energy and Natural Resources Committee that his job would be to "review the facts and review the law and provide my clear advice on what the law requires" when asked whether he would ensure that appropriated funds are obligated and dispersed in accordance with law and the Impoundment Control Act.
Senator Heinrich raised concerns that the department "continues to violate court orders with respect to frozen funds" and asked directly, "If confirmed, will you ensure that appropriated funds are obligated and dispersed in a timely manner in accordance with the law and in accordance with the Impoundment Control Act." Doerfemeyer replied that he had not yet started at the department but that, as solicitor, he would analyze legal requirements and advise that "if the law requires that the funds be obligated and spent, then the funds will be obligated and spent."
Heinrich also questioned the nominee about a recent internal legal development: a senior adviser to the secretary, acting outside the Vacancies Reform Act, had "reinstated a legal opinion that had been vacated by a federal district court," an opinion the district court vacated after finding a prior solicitor had misinterpreted the Migratory Bird Treaty Act. Heinrich noted the Justice Department did not appeal and that the reinstated opinion purported to apply in "93 of the nation's 94 judicial districts." Doerfemeyer answered plainly: "The short answer is no. I do not believe that the solicitor can overrule, a federal district judge." He added that he planned to learn more about Department of the Interior practice on solicitor opinions.
The senators pressed Doerfemeyer on permitting timelines under the National Environmental Policy Act. Noting statutory and administrative time limits adopted in recent legislation, Senator Heinrich asked how the nominee would balance meeting a 14- or 28-day timeline for environmental reviews with the need to produce legally sufficient analyses. Doerfemeyer said it would be "counterproductive to publish a final EIS and a record of decision that did not ... entail the necessary hard look" required by statute, warning that a rushed final EIS that fails legal requirements could prompt years of litigation and remands that would delay projects more than a careful analysis.
All three topics — compliance with court orders on frozen funds, the limits of solicitor authority relative to federal judges, and the tension between statutory review deadlines and litigation risk under NEPA — were described as matters the nominee would address by reviewing facts and law and providing written legal advice if confirmed.
The committee then moved to questioning from other senators.
